Opinion
35125.
DECIDED APRIL 23, 1954.
Trover. Before Judge Stephens. Laurens Superior Court. January 14, 1954.
Harold E. Ward, C. C. Crockett, for plaintiff in error.
Carl K. Nelson, contra.
1. While there was sufficient evidence to authorize the money verdict returned by the jury for the plaintiff, that verdict was not demanded. Under the pleadings and the evidence, together with the reasonable inferences to be drawn therefrom, the jury would also have been authorized to return a verdict for the defendant, for, under the circumstances shown by the evidence, the jury would have been authorized to find that the plaintiff accompanied the agent of the finance company to an automobile dealer's place of business after the agent had already constructively taken control of the plaintiff's car, that the plaintiff saw the agent and the defendant engaged in some transaction, saw the defendant examining the plaintiff's car, and accepted a check from the defendant for $10 with the statement from the agent of the finance company that that was all he had coming to him, and at that time relinquished his physical possession of the car. From these facts and circumstances, the jury would have been authorized to find that the plaintiff saw the defendant purchasing his automobile, and that he stood by without interposing any claim or otherwise objecting, and that, therefore, he was estopped thereafter to assert any claim to the automobile. Allen v. Lott-Lewis Co., 8 Ga. App. 313 ( 68 S.E. 1073); Varn v. Bloodworth, 157 Ga. 300 ( 121 S.E. 380); Jackson v. Moultrie Production Credit Assn., 76 Ga. App. 768 ( 47 S.E.2d 127).
2. Consequently, under the conflict in the evidence demonstrated in the foregoing division of this opinion, the trial court did not, in the exercise of its discretion, err in granting the new trial. "The first grant of a new trial shall not be disturbed by the appellate court, unless the plaintiff in error shall show that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge." Code § 6-1608; Adams v. Hancock, 103 Ga. 561 ( 29 S.E. 715); Wimburn v. Fiske, 140 Ga. 132 ( 78 S.E. 717).
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
DECIDED APRIL 23, 1954.
Frank James instituted a bail-trover action against T. B. Perry, doing business as Perry Motor Company, and alleged that Perry "is in possession" of a certain described automobile of the value of $1,200, to which James claims title; that Perry "fails and refuses to deliver said property to" the plaintiff or to pay him the profits thereof. The yearly value of the property is the sum of 7 percent per annum of the above amount from January 5, 1953.
The defendant Perry answered the suit and alleged that he is only one of the partners who compose Perry Motor Company; that he "was in possession" of the described automobile; denied that it was of the value of $1,200; denied that he had failed and refused to deliver the property or to pay the plaintiff the profits thereof; denied the alleged yearly value of the automobile; and further answering, he alleged: "A. That defendant purchased the said above described property from Associate Discount Corporation through their agent and representative, Charlie Gaines, for the consideration of $750. That at the time of the purchase of said car by the defendant and the sale of the car by the said Charlie Gaines, that Frank James was present, and made no objections to said sale and made no claim of interest therein. B. That after the price of $750 was agreed upon the representative asked defendant to make two checks in payment of said car, by making one to Associate Discount Corporation for $740 and one to Frank James for $10 and the said agent said he had agreed to pay said Frank James $10 for driving the car to town. That your defendant so drew said checks and delivered same to the representative for the sums above stated, and that said checks were cleared and paid by defendant's bank. C. That at the time of the purchase he knew nothing of any interest in said car by said plaintiff and that he stood by and allowed said sale to be completed by the said Associate Discount Corporation and the defendant without ever claiming any interest or title to said automobile. D. That under said sale your defendant assumed full and complete title without notice of interest of plaintiff, and that he is now barred to make claim to said automobile."
Upon the trial the plaintiff elected to take a money verdict instead of the automobile, and the jury returned a verdict in favor of the plaintiff for $500.
Upon the motion of the defendant, the trial court granted a new trial, and the exception in the present writ of error is to that judgment.
The evidence on the trial was substantially as follows: The plaintiff testified that he had purchased the automobile from McCord Motor Company on September 1, 1951, for $1,293.50, including financing, and had paid $526.50 down at that time; that on January 5, 1953, "a man from the finance company in Macon" came to his house and said that the plaintiff owed some money on the car; that he told him that he did not think so, but to let him see the records, but he wouldn't let him see the records and said he had to take the car; that the man from the finance company was a white man, and he, the plaintiff, was colored; and that, although he did not owe anything on the car, he was afraid not to do what the white man said, and when he asked him to drive the automobile to town he did so; that he drove the car to Dublin to the Perry Motor Company, and "Mr. Perry looked at the car. They gave me $10 in a check and Mr. Gaines [the man from the finance company] $740. They said that is what I had coming. I did not tell Mr. Perry it was my car. I saw Mr. Perry look it over. I did not demand the car from Mr. Perry. I did get the money on the $10 check. I did object at my house. I told him [the man from the finance company] not to take it, but didn't say anything to Mr. Perry because I was scared. I didn't make demand on Mr. Perry, but I talked to my lawyer and he said he would handle it. He filed suit about a week or so after they took my car. [I don't owe anything on the car.] They didn't give me anything back on the insurance. . . I paid them all of those payments. I paid them everything on those receipts. I didn't sign a bill of sale to Mr. Perry. I don't owe them anything." The plaintiff introduced in evidence a bill of sale to him and the receipts.
The defendant testified substantially as follows: "I was at my place of business on January 5, 1953, and Mr. Charlie Gaines and a colored man drove into my lot. Mr. Gaines asked me if I was interested in buying the car the colored man was driving. I told him I would look it over and make him an offer. After I looked over the car I offered Mr. Gaines $750 for it. Mr. Gaines said I had bought it. A colored man was there, but said nothing and made no objections to the sale. When we went back into the office to issue the check, Mr. Gaines asked that I make one check for $10 to Frank James and one for the balance of $740 to Associate Discount Corporation. . . I made the checks out as requested and both checks were accepted and later endorsed by the parties and cashed. . . Frank James did not object to the sale of the car and he has never demanded the car from me. . . I got a suit against me about two weeks later. I did not look under the hood or drive the car. I didn't get a bill of sale from Frank James. I didn't know anything about what was owing on the car by Frank James. . . I didn't examine the car other than look it over and check the blue book. The car was not worth $1,200. I put on the check to Associate the serial number of the car. I did not put anything on the check for James. I did not state what it was for." Mr. Gaines, the man from the finance company, admitted taking the plaintiff's car, having the plaintiff to drive it to the defendant's place of business, and admitted having sold the car to the defendant. He also testified: "Frank James was standing there and saw Mr. Perry looking over the car and said nothing."